Johnson v. Galli

• Decision Date: 24 September 1984
• Docket Number: No. CV-R-82-79-ECR.,CV-R-82-79-ECR.
• Parties: Dennis Leonard JOHNSON, et al., Plaintiffs, v. Robert J. GALLI, et al., Defendants.
• Court: U.S. District Court — District of Nevada

596 F. Supp. 135

Dennis Leonard JOHNSON, et al., Plaintiffs, v. Robert J. GALLI, et al., Defendants.

No. CV-R-82-79-ECR.

United States District Court, D. Nevada.

September 24, 1984.

Lawrence J. Semenza, Reno, Nev., for plaintiffs.

Art Nichols, Edward Dannan, Deputy Dist. Atty., Reno, Nev., for defendants.

MEMORANDUM DECISION AND ORDER

EDWARD C. REED, Jr., District Judge.

This matter is before the Court by reason of objections, from both sides, to the Report and Recommendation of U.S. Magistrate Phyllis Halsey Atkins. That Report was made after a hearing on the defendants' motion for partial summary judgment in this civil rights class action concerning conditions at the Washoe County Jail.

Pretrial Detention and Bail

The Magistrate recommends that summary judgment be granted as to the practice in setting bail or allowing release on a defendant's own recognizance. The plaintiffs contend that the Sheriff's Department is still exercising "gut feeling" discretion as to the release of alleged misdemeanants, despite a 1981 amendment to Nevada Revised Statutes that makes this solely a judicial function. The basis for Magistrate Atkins' recommendation was the failure of the plaintiffs to submit any affidavits or other evidence showing violation of the amended statutes.

An affidavit accompanied the plaintiffs' objections to the Magistrate's Report and Recommendation, however. The affiant is a law clerk of the plaintiffs' counsel. She details an interview with a sergeant in the Sheriff's Department. The sergeant reportedly indicated to the affiant that the "gut feeling" of the booking officer remains the foremost criterion in determining whether an arrestee will be released on his own recognizance.

Said affidavit having been submitted subsequent to the Magistrate's report, she had no opportunity to consider it. (It appears that the sergeant's statements could be admissible under F.R.Ev. 801(d)(2)). The affidavit could be stricken as untimely. See Wood v. Santa Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1519 (9th Cir.1983). Nevertheless, the Court feels that the interests of justice call for a remand of this issue to the Magistrate for reconsideration in light of the aforementioned affidavit. Magistrate Atkins may, if she feels it appropriate, allow the defendants to file counter-affidavits or otherwise respond to the affidavit.

Contact Visits

The Magistrate recommends denial of the defendants' motion for partial summary judgment as to the restrictions on contact visits. She feels that the defendants have failed to present evidence that the restrictions are reasonably related to a legitimate penological purpose.

The defendants point out that one of its jail officer witnesses testified that contact visitation creates a significant security danger of the smuggling of contraband and weapons into the jail. They further argue that the reasonable relationship standard is inapplicable because contact visits are not a constitutional right.

In Rutherford v. Pitchess, 710 F.2d 572, 577 (9th Cir.1983) the Circuit declared that the forbidding of contact visits to detainees who had spent more than thirty days in jail may represent an unreasonable, exaggerated response to security concerns, depending upon the security conditions at the particular jail. The U.S. Supreme Court reversed, sub-nom. Block v. Rutherford, ___ U.S. ___, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984). On page ___, 104 S.Ct. on page 3228 the opinion concludes that a blanket prohibition on contact visitation is a reasonable response to security needs, consistent with the Fourteenth Amendment. A little further down the same page, the opinion states: "We hold only that the Constitution does not require that detainees be allowed contact visits when responsible, experienced administrators have determined, in their sound discretion, that such visits will jeopardize the security of the facility."

Thus, the Supreme Court seems to feel that contact visitation involves Fourteenth Amendment rights, but that those rights are not violated where, as here, the jail administrators determine that such visits constitute a threat to security.

Pretrial detainees may not be punished to any extent, by reason of the protection of the Fourteenth Amendment, whereas convicted prisoners may be held under punitive conditions so long as the Eighth Amendment is not violated. Fischer v. Winter, 564 F.Supp. 281, 298 (N.D. Cal.1983); Martino v. Carey, 563 F.Supp. 984, 1006 n. 17 (D.Ore.1983). The upshot is that a jail practice that does not offend detainees' rights will not violate those of convicted prisoners either.

The Court rejects the recommendation of the Magistrate, and holds that the defendants are entitled to partial summary judgment on the issue of contact visitation.

Telephone Use

It has been recommended by the Magistrate that partial summary judgment be granted the defendants on the issue of restrictions on telephone use. The defendants provided authority that there is no constitutional right to telephone communication; since the plaintiffs did not cite authority to the contrary, Magistrate Atkins feels the defendants' motion should be granted.

Affidavits presented by the plaintiffs indicate that detainees are allowed only infrequent (e.g., once a week) use of the telephone, sometimes at hours when the person to be called wouldn't be available. Also, if the jail staff is overwhelmed with other work, there could be a two-week delay in receiving a call. By comparison, the plaintiffs claim that inmates of the State's penitentiaries are provided with regular, systematic access to telephones.

Ofttimes use of a telephone is essential for a pretrial detainee to contact a lawyer, bail bondsman or other person in order to prepare his case or otherwise exercise his rights. There are instances where the family of a detainee or inmate may live so far away from Washoe County as to make personal visitation impractical. The better view appears to be that there is no legitimate governmental purpose to be attained by not allowing reasonable access to the telephone, and that such use is protected by the First Amendment. See Brenneman v. Madigan, 343 F.Supp. 128, 141 (N.D.Cal. 1972); Moore v. Janing, 427 F.Supp. 567, 576 (D.Neb.1976); Inmates of Allegheny County Jail v. Wecht, 565 F.Supp. 1278, 1284 (W.D.Pa.1983).

The defendants are not entitled to judgment as a matter of law on the issue of telephone use, therefore the Magistrate's recommendation that they be granted partial summary judgment is rejected.

Opening of Mail

The affidavits submitted by the plaintiffs have caused the Magistrate to recommend denial of the defendants' motion as to treatment of mail. For the purpose of eliminating the issue, the defendants are willing to stipulate that violations of their own regulations have occurred and that they will not happen again.

Under such circumstances the defendants are not entitled to partial summary judgment on this issue, therefore the Court accepts Magistrate Atkins' recommendation of denial of the defendants' motion.

Library Facilities

The Magistrate has recommended denial of the defendants' motion as to legal assistance for inmates who are involved in or wish to commence civil litigation. The defendants object to this recommendation, on the ground that the jail staff will secure, from the County law library, books requested by inmates wishing to represent themselves without questioning whether criminal or civil litigation is involved. Further, the defendants argue that civil cases are not comprehended by the rule as to legal assistance for inmates involved in criminal cases.

It is unrealistic to expect a lay person to know the specific law books he will need to research a legal problem, so that he might request them from a guard. Martino v. Carey, 563 F.Supp. 984, 1003 (D.Ore.1983). Either an opportunity to browse in the library or some expert assistance would be required; otherwise the lay person is denied effective access to the courts. Id. at 1003-1004. This right of access applies to civil, as well as to criminal, matters. Id.; Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986, 41 L.Ed.2d 935 (1974); op. of Douglas, J. in Cruz v. Hauck, 404 U.S. 59, 64, 92 S.Ct. 313, 316, 30 L.Ed.2d 217 (1971).

The Court accepts the recommendation that the defendants' motion be denied as to access to legal materials in civil matters.

Educational, Vocational and Voluntary Work Programs.

It is the recommendation of the Magistrate that the defendants' motion for partial summary judgment as to educational, vocational and voluntary work programs be granted. She has found that there is no constitutional right to such programs. The plaintiffs contend that the adverse effect on rehabilitation and the increased violence engendered by forced idleness can amount to a violation of the Eighth Amendment.

Case law supports the Magistrate's recommendation. There is no constitutional right to rehabilitation; idleness and a lack of programs do not violate the Constitution. Hoptowit v. Ray, 682 F.2d 1237, 1254-1255 (9th Cir.1982); Capps v. Atiyeh, 559 F.Supp. 894, 908 (D.Ore.1983). Federal courts may not interfere with decisions made by state prison officials absent a constitutional violation. Hoptowit at 1246.

The Court accepts Magistrate Atkins' recommendation that partial summary judgment be granted the defendants as to this issue.

Training of Personnel

The plaintiffs have asked that a plan be submitted that would assure that the jail would be adequately staffed and properly trained to the standards of the American Correctional Society. Magistrate Atkins has recommended that the defendants' motion be granted as to this issue, for Hoptowit v. Ray, supra at 1251, declares that it is impermissible for courts to become involved in the minutiae of recruitment and training programs. The plaintiffs point out that lack of proper training may well result in the jail staff violating...